I. Legal Reasoning Generallydefinition II.

All legal reasoning follows one path. No legal argument can be accepted or rejected without all of the following pieces 1) Issue - What specifically is being debated? 2) Rule - What legal rule governs this issue? 3) Facts - What are the facts relevant to this Rule? 4) Analysis - Apply the rule to the facts. 5) Conclusion - Having applied the rule to the facts, what's the outcome?

II. Legal Reasoning - Explained with an Example

So, what does this mean?

1) Issue
The "issue" is the legal issue. It doesn't ask just any interesting question. It only asks whether THE LAW has anything to say about a particular topic. A classic example of this is a potential legal client who comes in and says that her boss is mean and rude -- he yells and screams and makes work wholly unpleasant. The client wants to know if she has a claim. I already know that there is no law (no rule) that generally prohibits a boss from being a jerk. However, experience tells me that the question should be:

Is this boss engaging in conduct which is unlawful discrimination?

(For those of you with quick logical minds, yes, this means there are forms of lawful discrimination.)

2) Rule
The "Rule" has two important parts. A lawyer, a judge, or whomever has to say what a rule is and where it comes from.

a) State the Rule That rule says (paraphrasing): "It is unlawful to treat someone in a manner that negatively affects the terms and conditions of employment, if the affected person is in a 'protected class' and is treated differently from a 'similarly situated person' not in her protected class." Each of the logical pieces you can break it into are called the "elements" of the rule. So, you could say the "elements" of discrimination are

having the terms and conditions of employment affected being in a protected class being treated differently from a similarly situated person

Each of these pieces contain legal terms of art, terms that have their own legal rules. So, you'd actually end up with some nesting here. b) Cite the Rule The law is based on existing rules. Even when a decision is based upon what is "fair" (which isn't that often), it's because there's a rule that says that the decision of this type of issue will be based on fairness. And, there are so many rules that no one can know them all. So, an argument has no weight unless it says exactly which rule is being relied upon. As you've seen already this presents a variety of challenges: If the lawyer provides the wrong law, she can lose the case (or the legal analysis), even if in the cosmos she should have won (ie., there's a law out there that gives her the result she wants). The law has mistakes in it, so the lawyer has to cite the law that exists and then provide some sort of annotation that explains why it's a mistake and/or where the mistake is. Like the Web, there are lots of versions of the same or similar things. You'll see this in case law. There can be lots of decisions that say the same thing on a particular issue. There are often decisions that cite other decisions for support. And, there's more than one publisher, so there's more than one citation to the exact same court decision. Within certain boundaries, any of these citations might be used. In this example, the rules are:

42 U.S.C. Section 2000e(a)(1) - the section of Title VII of the Civil Rights Act of 1964 that makes employment discrimination based upon sex illegal a number of other sections that define a "person", an "employee", an "employer", "commerce" (in which one must be engaged to be an

employer), "state" (because commerce must be between states to be included), etc. McDONNELL DOUGLAS CORP. v. GREEN, 411 US 792 (1973). This is the citation for the seminal US Supreme Court decision that describes the elements.

3) Fact
There are lots and lots of facts that make up the client's story. For the purpose of legal analysis, we look for "material" facts. These are the facts that fit the elements of the rule. So, in the example, we need to know: if the boss' behavior "affected" a "term or condition of employment"; if the potential client is in a "protected class"; if there are "similarly situated" employees; and if they've been treated in the same manner or differently. The facts that turn out to be relevant are:

she is a woman; she has not received a raise or promotion in the 10 years she's worked for this supervisor; there are men who report to the same supervisor; and no man who has worked for the supervisor has gone 10 years without a raise or promotion.

4) Analysis
At this stage, we see if our material facts fit the law. So, in the example, we'll say

being a woman means she is part of the protected class:female o FYI - all people belong to a protected class based upon "sex" (that is, they are either male or female, and both are protected classes); not receiving a raise or promotion is "affecting the terms and conditions of employment" there are men working for the same supervisor, so there are "similarly situtated" persons who are not in her protected class these men did not go without raises and promotions, so they were treated differently

5) Conclusion
We see that all "elements" of the rule are met and conclude that her boss engaged in unlawful discrimination.

III. Our "Deadbeat Dad" Example

Applying all of this to our previously discussed "deadbeat dad" example, we see:

1) Issue:
Is Joe a Deadbeat Dad?

2) Rule:
a) State the rule: Anyone is a Deadbeat Dad, if:

there is an outstanding child support obligation o the obligation was issued by a state court or legal authority a state is any of the 50 states or commonwealths any US territory or possession any Native American tribe o the obligation is more than one year old o the amount owed ismore than $1,000.00 the owing party does not reside in the same state as the child

b) Cite the rule: I know this is a rule, because it is a law passed by Congress. It's published at:

28 USC Section 118.

3) Fact:
We put together a hypothetical in which

Joe is a parent Sue is a child 05-NY-CIV-223 o is a New York State court order o is an order for child support o says that Joe owes $1500 o say that Sue is the obligee (the person entitled to be paid) Joe is a resident of New York

Sue is a resident of Massachusetts

4) Analysis:
Our analysis should say:

Is there is an outstanding child support obligation? - Yes, 05-NY-CIV223 o Was the obligation was issued by a state court or legal authority? - Yes, the state of NY Was the state any of the 50 states or commonwealths? - Yes, NY any US territory or possession? - No any Native American tribe? - No o Is the obligation more than one year old? - Don't know o Is the amount owed ismore than $1,000.00? - Yes, $1500. Does the owing party not reside in the same state as the child? - Yes, father in NY, daughter in MA

5) Conclusion:
When we following the chain of legal reasoning, we find out that I didn't provide enough information. We really don't know if Joe is a "deadbeat dad" because we missed one of the factual elements. We don't know if the debt is more than one year old.

Legal Reasoning: What Is It? By Jacob A. Stein The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth. Let some intelligent layman ask him to explain: he will not go very far before taking refuge in the excuse that the language of craftsmen is unintelligible to those untutored in the craft. -Benjamin N. Cardozo The briber and the bribee are indicted and tried together. The bribee is acquitted and the briber is convicted. There is something wrong here. It is illogical. Nevertheless, the court

affirms, citing cases that jury verdicts need not be logical, or explainable on any logical basis. The method of reasoning that juries use to reach a verdict is not something that the law is interested in putting under a microscope, a telescope, or a colonoscope. The verdict represents the cumulative effect, great or small, of the evidence, the appearance of the witnesses, the lawyers (some say even the color of the clothes the lawyers wear is crucial), the stirring closing arguments employing striking phrases, romantic metaphors, biblical proverbs, frequent references to common sense, the courts instruction, and the life experiences of each juror. Is the verdict the product of something called jury reasoning? Is it different from the reasoning of judges and lawyers? Is there such a thing as legal reasoning? Law schools choose not to confront the subject. The law schools I know of offer no course in legal reasoning. It is something that is best picked up along the way as a collateral benefit derived from reading cases and statutes. Law students and lawyers, when asked to give a definition of legal reasoning, respond with a long pause. At one time I had a stack permit that gave me the right to roam at will the stacks of the Library of Congress law division. In my wanderings up and down the aisles, I noticed oddlooking books whose titles indicated that the author believed that legal reasoning was pure deductive logic. It was asserted that the elementary laws that control human relations are discoverable by the methods used in the natural sciences. This is the true path to the knowledge that unifies torts, contracts, and the criminal law. I was young at the time and I was drawn to such books because I, too, wanted legal reasoning elevated to that level. Each of these books was privately printed and always in the first edition. Here is a typical quotation: The system of pleading as worked out with such completeness by the common law, and accepted with but slight modification

by modern codes, is at bottom no more than a plan by which an action at law is put upon a syllogistic basis. Each pleading in succession shifts the material of the syllogism until the fact in issue, be it a legal fact or a natural fact, is affirmed on one side and denied on the other. The final antithesis represents the premises of the syllogism which will determine the solution of the case. Common law pleading, with all its pretensions to formal logic and scientific certitude, was swept away with the enactment of the Federal Rules of Civil Procedure. Long before this Oliver Wendell Holmes Jr. had decided that formal logic, with its use of the major premise and the minor premise and the impressive ergo, has little to do with deciding real cases. Law, like everything else in life, is tentative. It does not deal in absolutes. Even if it did, it would cause a lot of trouble. Those who think they are absolutely correct are the kind of people who fight a war with others who think they are absolutely correct. As far as Holmes was concerned, the legal process is not particularly good at getting at truth. Five to four is good enough. The laws job is to settle real disputes as best it can, and the best way to do it often requires a dose of illogicality. Albert W. Alschuler, a professor at the University of Chicago Law School, in a recent Holmes biography, says that Holmes injected a poisonous skepticism into American law. Holmes did not believe in a divinely imposed distinction between right and wrong. Alschuler declares that Holmes bears some of the blame for the present acceptance of relativity in all human conduct, a relativity that discourages discipline. There is another recent book that describes Holmess philosophical views on legal reasoning. It is titled The Metaphysical Club by Louis Menand. Menand, although not a lawyer, writes concisely and clearly concerning Holmes and legal reasoning. The next time someone has the audacity to ask you to define legal reasoning, you might repeat Louis Menands definition:

Jurisprudential theories, like theories of literary criticism or historical methodologies, are generally categorized according to the element of their subjects they take to be essential. A legal theory that stresses the logical consistency of judicial opinions is called formalist; a theory that emphasizes their social consequences is called utilitarian; a theory that regards them as reflections of the circumstances in which they were written is called historicist. The problem with all such theories is that they single out one aspect of the law as the essential aspect. It was Holmess genius as a philosopher to see that the law has no essential aspect. Now back to the briber and the bribee. Was the jury verdict really all that bad? After the verdict a few of the jurors were interviewed. The evidence, as the case unfolded, made it clear that the briber used his position of power to extort the bribe. The verdict that appeared illogical, on reflection, had a respectable informal jury logic of its own. Holmes may have liked it.

Legal Reasoning- components by Judge Richard Poland, Flagler College Many pre-law students and others are curious about the differences between legal reasoning and other styles of reasoning. When undergraduates begin law school, law professors will tell these new law students that they need to learn how to think like a lawyer. What is legal reasoning and what does it really mean to think like a lawyer? Legal scholars generally agree that legal reasoning is the thinking process by which lawyers argue and judges decide actual cases. According to Brian Porto and others, legal reasoning is a process comprised of three separate

components. Those components are Reasoning by Analogy, Linguistic Analysis, and Judicial Discretion. It has been my experience as a lawyer and a judge that the first component, Reasoning by Analogy, is the most common method of reasoning used by the legal profession. (Eg. The case at bar is like the previously decided case of Smith v. Jones.) It involves finding cases or principles that courts have already decided and arguing that the case under discussion is similar to that prior case (stare decisis) or principle. For example, in Texas v. Johnson the defendant Johnson burned the American flag to protest President Reagan's renomination. The question became whether this act of burning the flag was speech protected under the First Amendment. The argument is that this action is political speech just as writing a letter to the editor of a newspaper decrying the Presidents foreign policy is political speech. Both are examples of speech protected by the First Amendment. The first is a form of speech that is known as expressive conduct, sufficiently imbued with a communicative element. The latter is simply written speech. Because both forms of speech send a political message which is readily understandable by others, both are protected from governmental interference under the First Amendment. Similarly, in Tinker v. Des Moines the Supreme Court stated that wearing a black armband to protest U.S. hostilities in Vietnam is "akin to pure speech" and therefore falls under the protection of the First Amendment just as oral or written protestations of the war are speech which can not be proscribed. So if we reason by analogy, speech can be expressive conduct as well as it can be the spoken or written word. Also in Griswold v. Connecticut, the Court inferred an individual Right to Privacy from various provisions in the U.S. Constitution (1st, 3rd, 4th, 9th Amendments, etc.) The Court then extended this right to privacy to include married couples by asserting that a State can not interfere with the right of a married couple to practice contraception. Reasoning by analogy, this right to privacy was later extended to unmarried couples in Eisenstadt v. Baird. However, the Court later found in Bowers v. Hardwick

that this same right of privacy in the bedroom did not extend to homosexual couples. Thus, reasoning by analogy has its limitations. Nevertheless, the Court is now reconsidering Bowers and may come to a different conclusion. Linguistic Analysis is the second component of Legal Reasoning. The question is what do the words used by the legislatures or the judges really mean. The legal community uses often contradictory tools like plain-meaning, context, canons of construction, legislative intent, statutory purpose or spirit of the law in a creative fashion to find the true meaning. The result which you want to obtain may affect which linguistic tool you select. For example, what does the word "parent" mean in The Federal Kidnapping Act as passed into law by the U.S. Congress. Does it mean just the biological parents or does it include, for example, adoptive parents, grandparents, stepparents, parents whose rights have been terminated, or legal guardians. The Congress may have given us some guidance, but lawyers and judges need to decide what words really mean when they argue and decide cases. Judicial Discretion is the last component. This refers to the public policy involved and/or personal views by a judge about the court's role or a legal concept. For example, in Roe v. Wade the right to privacy was extended to a pregnant woman. It was held that the right to terminate her pregnancy through the 1st trimester (now until the point of viability under Planned Parenthood v. Casey) was a privacy right of a woman with which the government could not interfere. Do future Supreme Court justices have the judicial discretion to change this? Yes. Will they? Probably not. The Court's role in establishing this right was pre-eminent. The Court would lose a great deal of legitimacy, credibility, and authority with the American people if it eliminated by a 5-4 vote that which has been a fundamental constitutional right of all women for 30 years. This Court will be especially cautious in the future because of its loss of esteem in much of the public eye as a result of the Bush v. Gore decision. Chief Rehnquist will be especially cognizant of the legacy of his Court.

Succinctly, this is what constitutes Legal Reasoning. It is not easily mastered, even by those of us who think that we use this process on a daily basis.

DEDUCTIVE METHOD Deductive reasoning is one of the two basic forms of valid reasoning. It begins with a generalhypothesis or known fact and creates a specific conclusion from that generalization. This is the opposite of inductive reasoning, which involves creating broad generalizations from specific observations. The basic idea of deductive reasoning is that if something is true of a class of things in general, this truth applies to all members of that class. One of the keys for sounddeductive reasoning, then, is to be able to properly identify members of the class, because incorrect categorizations will result in unsound conclusions. Truth and Validity For deductive reasoning to be sound, the original hypothesis or generalization also must be correct. A logical deduction can be made from any generalization, even if it is not true. If the generalization is wrong, though, the specific conclusion can be logical and valid but still can be incorrect. Examples One can better understand deductive reasoning by looking at examples. A generalization might be something such as, "All wasps have stingers." The logical conclusion of a specific instance would then be, "That is a wasp, so it has a stinger." This is a valid deduction. The truth of the deduction, however, depends on whether the observed insect is, indeed, a wasp. People often use deductive reasoning without even knowing it. For example, a parent might say to a child, "Be careful of that wasp it might sting you." The parent says this because he or she knows that wasps have stingers and, therefore, that the observed wasp has a stinger and might sting the child. Deductive reasoning From Wikipedia, the free encyclopedia Look up deductive reasoning in

Wiktionary, the free dictionary. Deductive reasoning, also called deductive logic, is reasoning which constructs or evaluates deductive arguments. Deductive reasoning contrasts with inductive reasoning in that a specific conclusion is arrived at from a general principle. Deductive arguments are attempts to show that a conclusion necessarily follows from a set ofpremises or hypotheses. A deductive argument is valid if the conclusion does follow necessarily from the premises, i.e., the conclusion must be true provided that thepremises are true. A deductive argument is sound if it is valid and its premises are true. Deductive arguments are valid or invalid, sound or unsound. Deductive reasoning is a method of gaining knowledge. An example of a deductive argument: 1. 2. 3. All men are mortal Socrates is a man Therefore, Socrates is mortal

The first premise states that all objects classified as "men" have the attribute "mortal". The second premise states that "Socrates" is classified as a man a member of the set "men". The conclusion states that "Socrates" must be mortal because he inherits this attribute from his classification as a man. Deductive reasoning moves from theory to observations or findings. So, in the above example, the theory is that 'All men are mortal' and the observation is that 'Socrates is a man.' So, the conclusion can be made that 'Socrates is mortal.' [edit]Law of detachment The law of detachment is the first form of deductive reasoning. A single conditional statement is made, and then a hypothesis (P) is stated. The conclusion (Q) is deduced from the hypothesis and the statement. The most basic form is listed below: 1. 2. 3. PQ P (Hypothesis stated) Q (Conclusion given)

We can conclude Q from P by using the law of detachment from deductive reasoning.[1] However, if the conclusion (Q) is given instead of the hypothesis (P) then there is no valid conclusion. The following is an example of an argument using the law of detachment in the form of an If-then statement:
1. 2. 3.

If mA>90, then A is an obtuse angle. mA=120. A is an obtuse angle.

Since the measurement of angle A is greater than 90, we can deduce that A is an obtuse angle. [edit]Law of syllogism The law of syllogism takes two conditional statements and forms a conclusion by combining the hypothesis of one statement with the conclusion of another. Here is the general form, with premise P: 1. 2. 3. P->Q Q->R Therefore, P->R.

The following is an example: 1. 2. 3. If Larry is sick, then he will be absent from school. If Larry is absent, then he will miss his classwork. If Larry is sick, then he will miss his classwork.

We deduced the solution by combining the hypothesis of the first problem with the conclusion of the second statement. We also conclude that this could be a false statement. [edit]Deductive logic: Validity and Soundness Deductive arguments are evaluated in terms of their validity and soundness. It is possible to have a deductive argument that is logically "valid" but is not sound. An argument is valid if it is impossible for its premises to be true while its conclusion is false. In other words, the conclusion must be true if the

premises, whatever they may be, are true. An argument can be valid even though the premises are false. An argument is sound if it is valid and the premises are true. The following is an example of an argument that is valid, but not sound; a premise is false: 1. 2. 3. Everyone who eats steak is a quarterback. John eats steak. Therefore, John is a quarterback.

The example's first premise is false (there are people who eat steak that are not quarterbacks), but the conclusion must be true, so long as the premises are true (i.e. it is impossible for the premises to be true and the conclusion false). Therefore the argument is valid, but not sound. The theory of deductive reasoning known as categorical or term logic was developed by Aristotle, but was superseded by propositional (sentential) logic and predicate logic. Deductive reasoning can be contrasted with inductive reasoning. In cases of inductive reasoning, even though the premises are true and the argument is "valid", it is possible for the conclusion to be false (determined to be false with a counterexample or other means). [edit]Hume's skepticism See also: Problem of induction Philosopher David Hume presented grounds to doubt deduction by questioning induction. Hume's problem of induction starts by suggesting that the use of even the simplest forms of induction simply cannot bejustified by inductive reasoning itself. Moreover, induction cannot be justified by deduction either. Therefore, induction cannot be justified rationally. Consequently, if induction is not yet justified, then deduction seems to be left to rationally justify itself an objectionable conclusion to Hume. Hume did not provide a strictly rational solution per se. He simply explained that we do induce, and that it is useful that we do so, but not necessarily justified. Certainly we must appeal to first principles of some kind, including laws of thought.

DEDUCTIVE REASONING Deductive reasoning is the opposite process to inductive reasoning. In general, terms, inductive reasoning takes a specific example, or examples, and induces that they can be applied to a much larger group. by Martyn Shuttleworth (2008) Deductive reasoning, by contrast, starts with a general principle and deduces that it applies to a specific case. Inductive reasoning is used to try to discover a new piece of information; deductive reasoning is used to try to prove it.

Deductive Reasoning Every day, I get in my car to leave for work, at eight oclock. Every day, the journey takes 45 minutes, and I arrive at work on time. If I leave for work at eight oclock today, I will be on time. Inductive Reasoning

Today, I left for work at eight oclock, and was on time. Therefore, every day that I leave the house at eight oclock, I will arrive at work on time. The deductive statement is a perfectly logical statement, but does rely upon the initial premise being correct. Perhaps today, there are roadworks, so you will end up being late for work. This is why any hypothesis can never be completely proved, because there is always the scope for the initial premise to be wrong. Inductive reasoning, whilst commonly used in science, is not logically valid, because it is not strictly accurate to assume that a general principle is correct. In the above example, perhaps today is a weekend, with less traffic. It is illogical to assume an entire premise, just because one specific data set seems to suggest it. This is not to say that inductive reasoning has no place in scientific processes, because it is an extremely useful tool. Even mathematicians use the process, to look at a specific phenomenon and assess the possibility that it is true in all cases. Deductive reasoning is then used to construct a logical and rigorous proof. There is, however, one major weakness in deductive reasoning, a trap into which a scientist should not fall. Deductive reasoning relies heavily upon the initial premise being correct. If this premise is incorrect, not only does it jeopardize the deductive reasoning, but the whole process of logic. Certain philosophers have argued that deductive reasoning is an unattainable ideal, and that all scientific deduction is defeasible. Many branches of applied science work around this, by assigning probabilities to events and outcomes. Whilst not a strict application of the scientific method, it is useful where incorrect deductions could be devastating. For example, weather forecasting is an area where deductive reasoning probabilities are often used. A meteorologist will look at the data, and using their skill and judgment, decide upon the likely weather for that day. They are aware that a certain pattern of initial conditions frequently leads to a certain weather type. However, they will never say that it is definitely

going to rain, because the weather is too unpredictable, and they can never be sure that their initial assumptions are correct. Michael Fish, The respected British meteorologist, in 1987, stated, categorically, that there was no chance of a hurricane hitting Southern England. He was wrong, and the unprepared country was devastated. The initial premises of his deductive reasoning were wrong, so now forecasters always warn of adverse weather as a percentage chance, affording people the choice of preparing for the worst.

Deduction & Induction Ukranian Translation In logic, we often refer to the two broad methods of reasoning as the deductive and inductive approaches. Deductive reasoning works from the more general to the more specific. Sometimes this is informally called a "top-down" approach. We might begin with thinking up a theoryabout our topic of interest. We then narrow that down into more specifichypotheses that we can test. We narrow down even further when we collect observations to address the hypotheses. This ultimately leads us to be able to test the hypotheses with specific data -- a confirmation (or not) of our original theories. Inductive reasoning works the other way, moving from specific observations to broader generalizations and theories. Informally, we

sometimes call this a "bottom up" approach (please note that it's "bottom up" and not"bottoms up" which is the kind of thing the bartender says to customers when he's trying to close for the night!). In inductive reasoning, we begin with specific observations and measures, begin to detect patterns and regularities, formulate some tentative hypotheses that we can explore, and finally end up developing some general conclusions or theories. These two methods of reasoning have a very different "feel" to them when you're conducting research. Inductive reasoning, by its very nature, is more open-ended and exploratory, especially at the beginning. Deductive reasoning is more narrow in nature and is concerned with testing or confirming hypotheses. Even though a particular study may look like it's purely deductive (e.g., an experiment designed to test the hypothesized effects of some treatment on some outcome), most social research involves both inductive and deductive reasoning processes at some time in the project. In fact, it doesn't take a rocket scientist to see that we could assemble the two graphs above into a single circular one that continually cycles from theories down to observations and back up again to theories. Even in the most constrained experiment, the researchers may observe patterns in the data that lead them to develop new theories.