The last post gave an overview of an appellate brief’s argument section. This one covers the different types of arguments that the brief writer may make.
Wilson Huhn, a Professor of Law at the University of Akron School of Law, authored “The Five Types of Legal Argument.” In it, Huhn offered practical ways to argue from the different sources of the law, identified the policies achieved by each source, and offered ways to counter each type of argument.
The types of arguments are from:
- text (for judicial objectivity)
- case precedent (for stability)
- intent of the drafters (to respect the drafters, particularly those elected legislators)
- tradition (for social cohesion)
- policy (for consequences that are consistent with the law’s purpose)
The book explains how to develop each type argument and the different ways to counter each. Huhn, for example, notes that a textual analysis may face competing canons of construction; that precedent is arguably distinguishable; and that intent, tradition, and policy are often open to debate.
Because the book is laid out so clearly, its table of contents offers a helpful checklist of ways to develop and refute arguments. I highly recommend it.
Do any other brief writers have tips on how to go about analyzing the law? If so, please let us hear from you. You may reach me here.