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The Five Types of Legal Argument, Fourth Edition
Huhn demonstrates that there are five different types of legal arguments (based on text, intent, precedent, tradition and policy), and through myriad examples this book teaches law students, lawyers, and judges how to identify, create, attack, and evaluate each type of argument. The book contains useful advice and illustrations on how to weave the different types of arguments together to make them more persuasive.
Huhn describes and explains how lawyers use logic, reasoning by analogy, and policy analysis in resolving progressively more difficult cases. The fourth edition of the book includes new chapters that illustrate policy arguments through the use of graphs and advises law students how to answer essay exam questions.
The Core Knowledge content for this book will be available for use in the summer of 2022.
Huhn describes and explains how lawyers use logic, reasoning by analogy, and policy analysis in resolving progressively more difficult cases. The fourth edition of the book includes new chapters that illustrate policy arguments through the use of graphs and advises law students how to answer essay exam questions.
The Core Knowledge content for this book will be available for use in the summer of 2022.
211 pages, Kindle Edition
First published September 1, 2002
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Displaying 1 - 6 of 6 reviews
September 5, 2017
FIVE TYPES OF LEGAL ARGUMENTS feels like the sort of book a legal method/writing professor would assign their students with the express intent of assigning the reading out of order, and include an accompanying lecture to flesh out its concepts.
While Huhn does, in theory, describe the titular legal five arguments and how to use/identify them, the book suffers from a chaotic format. The author chooses to push most of the information not directly related to defining a specific term to the footnotes, which leaves the reader with a disjointed and choppy mess of a book. In some cases, the footnotes are just as long, if not longer, than the chapter they’re supposed to be accompanying. Case descriptions and judicial opinions suffer the most from this treatment, as the anything beyond the basic context is often left out of the main text entirely. Likewise, even though the book is aimed at law students, the book decides not to address how casebook authors also have biases towards legal arguments (f’ex, my Torts casebook is written by someone who emphasizes policy arguments).
Perhaps the book is meant to accompany other textbooks, rather than stand alone on its own strength, but it is difficult to recommend as-is. While useful information can be gleamed off the book, such as which arguments specific Supreme Court justices prefer in their decision making and how they might conflict with one another, FIVE LEGAL ARGUMENTS hardly constitutes a must-read for would-be lawyers. Looking up the five arguments through a search engine instead will provide the rough equivalent of the book’s material without much loss of detail and/or instruction.
While Huhn does, in theory, describe the titular legal five arguments and how to use/identify them, the book suffers from a chaotic format. The author chooses to push most of the information not directly related to defining a specific term to the footnotes, which leaves the reader with a disjointed and choppy mess of a book. In some cases, the footnotes are just as long, if not longer, than the chapter they’re supposed to be accompanying. Case descriptions and judicial opinions suffer the most from this treatment, as the anything beyond the basic context is often left out of the main text entirely. Likewise, even though the book is aimed at law students, the book decides not to address how casebook authors also have biases towards legal arguments (f’ex, my Torts casebook is written by someone who emphasizes policy arguments).
Perhaps the book is meant to accompany other textbooks, rather than stand alone on its own strength, but it is difficult to recommend as-is. While useful information can be gleamed off the book, such as which arguments specific Supreme Court justices prefer in their decision making and how they might conflict with one another, FIVE LEGAL ARGUMENTS hardly constitutes a must-read for would-be lawyers. Looking up the five arguments through a search engine instead will provide the rough equivalent of the book’s material without much loss of detail and/or instruction.
December 21, 2010
This is perhaps the most helpful book I've read in law school. It classifies legal arguments into five basic categories and briefly explains how each type of argument is used and how to attack each type of argument.
I especially like that the book notes that each of the different types of arguments--text, intent, precedent, tradition, and policy--embodies an underlying value of our legal system--objective proof of the law, popular sovereignty/personal autonomy, predictability/consistency, conformity to settled societal expectations, and flexibility to adapt to a changing society. Many legal conflicts reflect the inherent tension in these values.
While my own judicial philosophy is still unsettled, this book has at least allowed me to clearly see how legal arguments are structured and understand the values that undergird the debate.
I recommend the book to anyone--not just those within the legal community--as Huhn's plain-English approach is accessible for all and his explanation of legal argument will enable the reader to better understand today's most relevant legal issues.
I especially like that the book notes that each of the different types of arguments--text, intent, precedent, tradition, and policy--embodies an underlying value of our legal system--objective proof of the law, popular sovereignty/personal autonomy, predictability/consistency, conformity to settled societal expectations, and flexibility to adapt to a changing society. Many legal conflicts reflect the inherent tension in these values.
While my own judicial philosophy is still unsettled, this book has at least allowed me to clearly see how legal arguments are structured and understand the values that undergird the debate.
I recommend the book to anyone--not just those within the legal community--as Huhn's plain-English approach is accessible for all and his explanation of legal argument will enable the reader to better understand today's most relevant legal issues.
April 16, 2026
Law Matters - The Five Types of Legal Argument by Wilson Huhn
Peter S Bradley
Apr 16, 2026
The Five Types of Legal Argument by Wilson Huhn
In “The Five Types of Legal Argument,” Wilson Huhn dissects the structure of legal argument. According to Huhn, a legal argument’s structural support, its basic foundation, is provided by one of five sources: Text, Intent, Precedent, Tradition and/or Policy (hereinafter “TIPTAP”). [1] These five sources generally define what counts as a legal argument, as opposed to other kinds of arguments. An argument from an epic poem or a moral intuition might be effective in stirring people into action, but it would be so much white noise in a courtroom.
The five sources also determine what counts as evidence for the legal argument. Arguments based on “text” require a written source, such as a law or a contract. Arguments based on intent expand the admissible evidence to statements – written or oral – indicating what the authors of the “text” meant by the express words of the text. Arguments based on “precedent” consider only decisions rendered pursuant to the “law,” such as legal opinions, agency rulings, etc. Arguments based on “tradition” are broader and include any credible material that provides historical evidence of the community’s beliefs or practices over an extended period of time. Arguments based on “policy” are even more expansive and may include statements in the text or the precedents, insights gleaned from tradition, or the opinion of experts.
Huhn is a legal pluralist. At various points, he argues that there can be no single application of legal principles to fact patterns because the five sources serve different social values. In any given instance, one value may shift the balance in the direction of one answer that, in a different situation, might go another way. For example, an argument that privileges a legal text is one that recognizes the value of popular sovereignty because democratic institutions communicate their will through express laws. An approach that emphasizes policy might privilege equity or efficiency over predictability, since policy approaches are more concerned with social outcomes and require more flexibility than a text-based approach can permit. Huhn writes:
Each type of legal argument serves a different value. Textual interpretation promotes objectivity. Legal arguments based upon intent reflect the popular will. Following precedent promotes stability. Following tradition promotes social cohesiveness. And policy arguments—consequentialist arguments—enable the law to adjust to changing conditions and to achieve justice.
Huhn (p. 13).
The life of the law has been the tension of these factors. [2] The policies and the sources that serve them do not always pull in the same direction. This tension requires an exercise of judgment, which, in turn, makes law inherently indeterminate.
This doesn’t mean every aspect of the law is indeterminate. One of the policies of the law is predictability. A legal system that is entirely, largely, or mostly indeterminate would violate the basic purpose of law, which is to provide a way for humans to order their behavior so that they can obtain socially good ends or avoid the penalties associated with socially bad behavior.
Huhn’s approach in the first part of his book is to consider each source in isolation, addressing where it can be found and the values it serves. These insights are illuminating. Despite practicing law for forty years, I had various epiphanies from Huhn’s observations as I realized why the legal system did some of the things it did. [3]
Huhn’s next step is to methodically point out the possible arguments that can be made in response to each source. There was nothing here that I had not been doing for forty years. An experienced attorney might be tempted to dismiss Huhn’s approach as obvious, but that misses the point. Most attorneys learn law and legal practice as an art. They develop a system by trial and error that works for them. They have learned this system by watching others or by trying different approaches and rejecting the ones that fail. Other approaches might be equally effective, but at some point, attorneys feel they have enough tools in their bag of tricks to get the job done.
Huhn takes the art and turns it into a science. By science, I mean a systematic study of a topic in the same way that Scholastics meant. Law is not a “science” as we understand science today. There is too much subjectivity for it to achieve the august status of a true science. Huhn writes:
For the study of law is not a science. Rules of law are not immutable like laws of nature. Rules of law do not describe objective truth; they reflect subjective intentions. The lawyer’s task is not to deduce the law from an unchanging set of first principles, but rather to predict how the law will emerge from a number of sources and a welter of conflicting values. As Holmes said, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”19 Law students are not expected to memorize all the rules of law, but are expected to learn how to persuasively argue for a favorable interpretation of the law or for a change in the law.
Huhn (p. 8).
Huhn amplifies this point in the following statement:
Third, it is critical to keep in mind that law is not a science. Legal reasoning is not deductive, but rhetorical.242 The goal of legal argument is not to describe a true state of affairs, but to persuade others to adopt your view of what the law is.243 Legal argument is not an act of discovery, but is rather a demonstration or a dramatic production. Drama is based on conflict, and a persuasive legal argument both acknowledges the conflict and presents your side of the conflict to the listener in a compelling way. The goal of legal argument is to persuade the listener, whether it is a client, another attorney, or a court, to resolve the conflict in the manner you suggest.
Huhn (p. 90).
Huhn’s five-source approach can enhance an attorney’s ability to make persuasive arguments. Given Huhn’s pluralist approach, he advocates using as many of the sources of law as possible. An attorney should mentally inventory TIPTAP and make arguments that weave together different sources to make a “cable” of an argument. Huhn explains:
What makes a legal argument resemble a cable rather than a chain? A legal argument that is a cable is one that weaves together the different types of legal argument. A brief or a judicial opinion that cites text, intent, precedent, tradition, and policy, all tending toward a single interpretation of the law, is far more persuasive than one that utilizes a single type of argument.225 When every method of legal argument points to the same conclusion, it creates an impression of inevitability.226
Huhn (pp. 86-87).
Huhn goes on to explain:
Accordingly, the first rule to follow in creating persuasive legal arguments is to invoke more than one type of legal argument.240 Do not rest upon a single argument, such as a textual interpretation or the citation of a single case. It is more persuasive to weave together all of the different types of legal argument in support of an interpretation of the law.241 When the text of a legal rule, the intent of its drafters, judicial precedent, relevant tradition, and policy analysis all militate in favor of a single interpretation of the law, the reasoning seems airtight. Where all five types of legal argument yield the same answer, it would appear to be an easy case. In writing a brief or preparing for oral argument, effective advocates attempt to incorporate all five kinds of legal argument into their presentation. Each of the arguments serves different values—objectivity, popular sovereignty, consistency, societal coherence, and sensitivity to consequences—and each deserves to be considered.
Huhn (pp. 89-90).
Huhn says that the order of presentation should be TIPTAP since there is a “natural progression from objective statements of what the law is to subjective judgments as to proper interpretation.” This makes sense, but my experience has always been “precedent, precedent, precedent.” Judges get uncomfortable applying the naked language of a statute if they cannot point to it having been applied in a similar way by another court.
In analyzing the structure of legal arguments, Huhn initially discusses what he calls “intra” arguments. These arguments pit an argument drawn from one of the five sources against an opposing argument drawn from the same category. For example, adverse parties each citing different statutes (text) or different cases (precedent) are engaging in what Huhn calls “intra-type arguments.”
For an experienced attorney, there is nothing new in Huhn’s approach. The virtue of the approach is to make explicit what is typically inchoate in the attorney’s mind. Huhn’s approach provides a nice checklist for thinking about a response to an argument based on a text. Thus, for arguments based on a text, the “intra-type” arguments are:
A. Intra-type attacks on plain meaning.
a. The text is ambiguous.
b. The text has a different plain meaning
B. Intra-type attacks on the Canons of Construction
a. The canons of construction do not apply.
b. A conflicting canon of construction applies.
C. Intra-type attacks on intratextual arguments
a. There is a conflicting intratextual inference drawn from the same text
b. There is a conflicting intratextual inference drawn from a different text
Huhn explains and discusses each of these points. He offers examples from legal texts, and his footnotes are rich in information. Once understood, this schematic provides a heuristic for thinking about possible arguments. Organized thinking is productive thinking.
Huhn’s heuristic for precedent-based arguments is as follows:
A. The Court’s opinion was not a holding but rather obiter dictum.
B. The opinion did not command a majority of the court.
C. The opinion was not issued by a controlling authority.
D. The case is distinguishable because of dissimilar facts.
E. The case is distinguishable for policy reasons.
F. There are two conflicting lines of authority.
G. The case has been overruled.
H. The case should be overruled.
This seems to be an exhaustive list. It also generally mirrors the order in which the arguments should be given, although G [The case has been overruled] should be the first in order of priority. A [The case did not command a majority] through C [The opinion was not issued by a controlling authority] are unlikely to exist in most cases. Most “intra-type arguments” against a precedent are going to be found in D [The case is factually distinguishable] or F [There are conflicting lines of authority.] If a lawyer can’t make those arguments, then the other side has the winning argument.
Again, Huhn’s approach is methodical. His discussion is lucid. His heuristic provides a way to think about arguments.
According to Huhn, the “cross-type argument” is a second kind of legal argument. In a cross-type argument, the conclusions reached by an argument based on one of the five sources are challenged by an argument based on a different source of law. Thus, an argument based on precedent might be challenged by an argument based on policy. Similarly, an argument based on text might be challenged by arguments based on intent or precedent. Cross-type arguments give rise to the “hard cases” because both sides may have good points based on their respective value, and the judge is put to the difficult task of saying which value takes precedence.
Huhn argues that there are two basic cross-type arguments. The “foundational argument” takes the stance that only one type of argument is legitimate, and the competing argument is therefore not legitimate. The “relational argument” asserts that “one type of argument categorically or contextually outweighs an argument of a different type.”
Huhn criticizes the foundational argument because he takes a pluralist approach to the law. To him, the different sources serve different functions, none of which are outside legal consideration. In contrast, foundationalists – Huhn identifies Supreme Court Justices Hugo Black and Antonin Scalia and Court of Appeals Justice Robert Bork – believe that one value should be the controlling value in an area of law. Huhn cites Justice Black’s argument in Adamson v. California that the text of the Constitution demonstrated the Founders' intent to incorporate the privilege against self-incrimination into the Due Process Clause, which meant that it was unconstitutional for prosecutors to comment on a defendant’s silence as evidence of guilt. Black criticized the majority opinion of Justice Frankfurter, which had held that courts could consider the “overall fairness of the trial” in deciding whether such comments were permissible. Black’s dismissed Frankfurter’s appeal to “natural law” and “civilized decency” as an innovation – a policy decision – that was foreclosed by the text.
Black’s argument was a “foundational argument.” Policy considerations, which encouraged innovation and efficiency, were illegitimate in his eyes in light of the crystallized “popular sovereignty” of the Constitution, i.e., what the lawmaker has decided should not be set aside by subsequent considerations about what is efficient or fair.
Huhn is more comfortable with relational cross-type arguments. The objection to such arguments is that they involve incommensurable comparisons. Huhn dispenses with this issue as follows:
Some legal scholars have said that cross-type conflicts cannot be resolved in an honest and rational way because the different types of legal arguments are “incommensurable,”413 like apples and oranges. My response to this argument is, “Would you rather eat an apple or an orange?”
Huhn (p. 147).
The problem with this response is that it buries the “you” who gets to make the choice. Presumably, the “you” is a judge, and we might want to ask why the judge’s fondness for oranges should overturn the language of the Constitution. I guess that concern puts me in the category of Black, Bork, and Scalia.
Nonetheless, judges are called upon to make decisions, and the universe of possible sources of legal argument is TIPTAP. Thus, text-versus-policy arguments will appear. Generally, judges are attentive to the popular sovereignty concern, and are, accordingly, inclined to stay away from situations where policy trumps text, except in the rarest of circumstances. Huhn points this out:
The resolution of cross-type conflict—and the solution to the commensurability problem—lies in balancing the values that each of the different types of argument serve.415 It is not possible to create a rigid hierarchy of types of arguments.416 There is a rough sense that the arguments should be ranked in the order they are listed: text, intent, precedent, tradition, and policy.417 Certainly many judicial opinions proceed in that order.418 However, the existence of a rigid hierarchy could not explain why, for example, when text conflicts with intent, the text controls in some cases, and the intent of the drafters controls in other cases.419 Each conflict must be evaluated in the context of the particular case.
Huhn (pp. 148-149).
Huhn’s theory of “the five types of legal arguments” is based on the content of the argument. Legal arguments can also be modeled by form, to wit, whether they are formally an argument based on deduction, analogy, or practical reasoning, which Huhn calls “formalism,” “analogy,” and “realism.” For Huhn, these categories are the stages of legal reasoning. Easy cases can be decided by formalistic rules. Formal rules are presumably easier to apply because they are based on objective criteria rather than judgment calls. For example, if the rule is that someone has to be thirty-five years old to run for president, then it is fairly easy to conclude that someone who is thirty years old cannot run for president.
The application of the rule gets harder when the facts depart from the paradigm of the rule, e.g, how old is a person who was conceived in vitro in 2020, put on ice for 20 years, born in 2040, and decides to run for president in 2060. [4] In such cases, the form of legal reasoning shifts to “reasoning by analogy.” Reasoning by analogy involves more judgment, since the question of what counts as a similarity or a valid analogy cannot be objectively defined.
Where analogies break down sufficiently, the judge is required to look at the principle underlying some legal rule that seems to be applicable and then extrapolate from that principle to the new fact pattern. Huhn calls this a “realistic policy analysis.”
Huhn outlines the following developmental pattern:
Accordingly, in progressively harder cases, we observe the following progression of legal arguments:
1. Formalist Arguments Applying Rules According to Their Terms →
2. Formalist Analogies to Rules in Cases with Similar Facts →
3. Realist Analogies to Rules in Cases Serving Similar Policies and Interests →
4. Realist Arguments Constructing New Rules Based Upon a Balancing of the Policies and Interests That Were Identified at Step 3.
Each of the stages of legal reasoning is necessary for a rational, coherent, and just system of law. Formalism promotes objectivity and predictability. Reasoning by analogy maintains consistency.549 And realism allows the law to adjust to new situations and ensures that the law will serve the underlying policies and interests that society values.
Huhn (p. 189).
This sets up an interesting point about the evolution of rules into standards and standards into rules. Huhn observes:
As rules evolve into standards—as the law moves from formalism to realism—the courts use realist analogies to identify the underlying values that justify all the various exceptions to the rule. In contrast, as standards evolve into rules—as the law moves from realism to formalism—the courts use formalist analogies to identify the factual similarities among the cases that apply the standard. As rules age, the courts increasingly question their validity as they are applied to diverse unforeseen fact patterns, and as standards age, the courts incrementally determine their meaning as applied to repetitive fact patterns. Rules evolve towards standards to serve justice, while standards evolve towards rules to enhance objectivity.576 To summarize, as rules evolve into standards:
See https://petersbradley.substack.com/p/...
Peter S Bradley
Apr 16, 2026
The Five Types of Legal Argument by Wilson Huhn
In “The Five Types of Legal Argument,” Wilson Huhn dissects the structure of legal argument. According to Huhn, a legal argument’s structural support, its basic foundation, is provided by one of five sources: Text, Intent, Precedent, Tradition and/or Policy (hereinafter “TIPTAP”). [1] These five sources generally define what counts as a legal argument, as opposed to other kinds of arguments. An argument from an epic poem or a moral intuition might be effective in stirring people into action, but it would be so much white noise in a courtroom.
The five sources also determine what counts as evidence for the legal argument. Arguments based on “text” require a written source, such as a law or a contract. Arguments based on intent expand the admissible evidence to statements – written or oral – indicating what the authors of the “text” meant by the express words of the text. Arguments based on “precedent” consider only decisions rendered pursuant to the “law,” such as legal opinions, agency rulings, etc. Arguments based on “tradition” are broader and include any credible material that provides historical evidence of the community’s beliefs or practices over an extended period of time. Arguments based on “policy” are even more expansive and may include statements in the text or the precedents, insights gleaned from tradition, or the opinion of experts.
Huhn is a legal pluralist. At various points, he argues that there can be no single application of legal principles to fact patterns because the five sources serve different social values. In any given instance, one value may shift the balance in the direction of one answer that, in a different situation, might go another way. For example, an argument that privileges a legal text is one that recognizes the value of popular sovereignty because democratic institutions communicate their will through express laws. An approach that emphasizes policy might privilege equity or efficiency over predictability, since policy approaches are more concerned with social outcomes and require more flexibility than a text-based approach can permit. Huhn writes:
Each type of legal argument serves a different value. Textual interpretation promotes objectivity. Legal arguments based upon intent reflect the popular will. Following precedent promotes stability. Following tradition promotes social cohesiveness. And policy arguments—consequentialist arguments—enable the law to adjust to changing conditions and to achieve justice.
Huhn (p. 13).
The life of the law has been the tension of these factors. [2] The policies and the sources that serve them do not always pull in the same direction. This tension requires an exercise of judgment, which, in turn, makes law inherently indeterminate.
This doesn’t mean every aspect of the law is indeterminate. One of the policies of the law is predictability. A legal system that is entirely, largely, or mostly indeterminate would violate the basic purpose of law, which is to provide a way for humans to order their behavior so that they can obtain socially good ends or avoid the penalties associated with socially bad behavior.
Huhn’s approach in the first part of his book is to consider each source in isolation, addressing where it can be found and the values it serves. These insights are illuminating. Despite practicing law for forty years, I had various epiphanies from Huhn’s observations as I realized why the legal system did some of the things it did. [3]
Huhn’s next step is to methodically point out the possible arguments that can be made in response to each source. There was nothing here that I had not been doing for forty years. An experienced attorney might be tempted to dismiss Huhn’s approach as obvious, but that misses the point. Most attorneys learn law and legal practice as an art. They develop a system by trial and error that works for them. They have learned this system by watching others or by trying different approaches and rejecting the ones that fail. Other approaches might be equally effective, but at some point, attorneys feel they have enough tools in their bag of tricks to get the job done.
Huhn takes the art and turns it into a science. By science, I mean a systematic study of a topic in the same way that Scholastics meant. Law is not a “science” as we understand science today. There is too much subjectivity for it to achieve the august status of a true science. Huhn writes:
For the study of law is not a science. Rules of law are not immutable like laws of nature. Rules of law do not describe objective truth; they reflect subjective intentions. The lawyer’s task is not to deduce the law from an unchanging set of first principles, but rather to predict how the law will emerge from a number of sources and a welter of conflicting values. As Holmes said, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”19 Law students are not expected to memorize all the rules of law, but are expected to learn how to persuasively argue for a favorable interpretation of the law or for a change in the law.
Huhn (p. 8).
Huhn amplifies this point in the following statement:
Third, it is critical to keep in mind that law is not a science. Legal reasoning is not deductive, but rhetorical.242 The goal of legal argument is not to describe a true state of affairs, but to persuade others to adopt your view of what the law is.243 Legal argument is not an act of discovery, but is rather a demonstration or a dramatic production. Drama is based on conflict, and a persuasive legal argument both acknowledges the conflict and presents your side of the conflict to the listener in a compelling way. The goal of legal argument is to persuade the listener, whether it is a client, another attorney, or a court, to resolve the conflict in the manner you suggest.
Huhn (p. 90).
Huhn’s five-source approach can enhance an attorney’s ability to make persuasive arguments. Given Huhn’s pluralist approach, he advocates using as many of the sources of law as possible. An attorney should mentally inventory TIPTAP and make arguments that weave together different sources to make a “cable” of an argument. Huhn explains:
What makes a legal argument resemble a cable rather than a chain? A legal argument that is a cable is one that weaves together the different types of legal argument. A brief or a judicial opinion that cites text, intent, precedent, tradition, and policy, all tending toward a single interpretation of the law, is far more persuasive than one that utilizes a single type of argument.225 When every method of legal argument points to the same conclusion, it creates an impression of inevitability.226
Huhn (pp. 86-87).
Huhn goes on to explain:
Accordingly, the first rule to follow in creating persuasive legal arguments is to invoke more than one type of legal argument.240 Do not rest upon a single argument, such as a textual interpretation or the citation of a single case. It is more persuasive to weave together all of the different types of legal argument in support of an interpretation of the law.241 When the text of a legal rule, the intent of its drafters, judicial precedent, relevant tradition, and policy analysis all militate in favor of a single interpretation of the law, the reasoning seems airtight. Where all five types of legal argument yield the same answer, it would appear to be an easy case. In writing a brief or preparing for oral argument, effective advocates attempt to incorporate all five kinds of legal argument into their presentation. Each of the arguments serves different values—objectivity, popular sovereignty, consistency, societal coherence, and sensitivity to consequences—and each deserves to be considered.
Huhn (pp. 89-90).
Huhn says that the order of presentation should be TIPTAP since there is a “natural progression from objective statements of what the law is to subjective judgments as to proper interpretation.” This makes sense, but my experience has always been “precedent, precedent, precedent.” Judges get uncomfortable applying the naked language of a statute if they cannot point to it having been applied in a similar way by another court.
In analyzing the structure of legal arguments, Huhn initially discusses what he calls “intra” arguments. These arguments pit an argument drawn from one of the five sources against an opposing argument drawn from the same category. For example, adverse parties each citing different statutes (text) or different cases (precedent) are engaging in what Huhn calls “intra-type arguments.”
For an experienced attorney, there is nothing new in Huhn’s approach. The virtue of the approach is to make explicit what is typically inchoate in the attorney’s mind. Huhn’s approach provides a nice checklist for thinking about a response to an argument based on a text. Thus, for arguments based on a text, the “intra-type” arguments are:
A. Intra-type attacks on plain meaning.
a. The text is ambiguous.
b. The text has a different plain meaning
B. Intra-type attacks on the Canons of Construction
a. The canons of construction do not apply.
b. A conflicting canon of construction applies.
C. Intra-type attacks on intratextual arguments
a. There is a conflicting intratextual inference drawn from the same text
b. There is a conflicting intratextual inference drawn from a different text
Huhn explains and discusses each of these points. He offers examples from legal texts, and his footnotes are rich in information. Once understood, this schematic provides a heuristic for thinking about possible arguments. Organized thinking is productive thinking.
Huhn’s heuristic for precedent-based arguments is as follows:
A. The Court’s opinion was not a holding but rather obiter dictum.
B. The opinion did not command a majority of the court.
C. The opinion was not issued by a controlling authority.
D. The case is distinguishable because of dissimilar facts.
E. The case is distinguishable for policy reasons.
F. There are two conflicting lines of authority.
G. The case has been overruled.
H. The case should be overruled.
This seems to be an exhaustive list. It also generally mirrors the order in which the arguments should be given, although G [The case has been overruled] should be the first in order of priority. A [The case did not command a majority] through C [The opinion was not issued by a controlling authority] are unlikely to exist in most cases. Most “intra-type arguments” against a precedent are going to be found in D [The case is factually distinguishable] or F [There are conflicting lines of authority.] If a lawyer can’t make those arguments, then the other side has the winning argument.
Again, Huhn’s approach is methodical. His discussion is lucid. His heuristic provides a way to think about arguments.
According to Huhn, the “cross-type argument” is a second kind of legal argument. In a cross-type argument, the conclusions reached by an argument based on one of the five sources are challenged by an argument based on a different source of law. Thus, an argument based on precedent might be challenged by an argument based on policy. Similarly, an argument based on text might be challenged by arguments based on intent or precedent. Cross-type arguments give rise to the “hard cases” because both sides may have good points based on their respective value, and the judge is put to the difficult task of saying which value takes precedence.
Huhn argues that there are two basic cross-type arguments. The “foundational argument” takes the stance that only one type of argument is legitimate, and the competing argument is therefore not legitimate. The “relational argument” asserts that “one type of argument categorically or contextually outweighs an argument of a different type.”
Huhn criticizes the foundational argument because he takes a pluralist approach to the law. To him, the different sources serve different functions, none of which are outside legal consideration. In contrast, foundationalists – Huhn identifies Supreme Court Justices Hugo Black and Antonin Scalia and Court of Appeals Justice Robert Bork – believe that one value should be the controlling value in an area of law. Huhn cites Justice Black’s argument in Adamson v. California that the text of the Constitution demonstrated the Founders' intent to incorporate the privilege against self-incrimination into the Due Process Clause, which meant that it was unconstitutional for prosecutors to comment on a defendant’s silence as evidence of guilt. Black criticized the majority opinion of Justice Frankfurter, which had held that courts could consider the “overall fairness of the trial” in deciding whether such comments were permissible. Black’s dismissed Frankfurter’s appeal to “natural law” and “civilized decency” as an innovation – a policy decision – that was foreclosed by the text.
Black’s argument was a “foundational argument.” Policy considerations, which encouraged innovation and efficiency, were illegitimate in his eyes in light of the crystallized “popular sovereignty” of the Constitution, i.e., what the lawmaker has decided should not be set aside by subsequent considerations about what is efficient or fair.
Huhn is more comfortable with relational cross-type arguments. The objection to such arguments is that they involve incommensurable comparisons. Huhn dispenses with this issue as follows:
Some legal scholars have said that cross-type conflicts cannot be resolved in an honest and rational way because the different types of legal arguments are “incommensurable,”413 like apples and oranges. My response to this argument is, “Would you rather eat an apple or an orange?”
Huhn (p. 147).
The problem with this response is that it buries the “you” who gets to make the choice. Presumably, the “you” is a judge, and we might want to ask why the judge’s fondness for oranges should overturn the language of the Constitution. I guess that concern puts me in the category of Black, Bork, and Scalia.
Nonetheless, judges are called upon to make decisions, and the universe of possible sources of legal argument is TIPTAP. Thus, text-versus-policy arguments will appear. Generally, judges are attentive to the popular sovereignty concern, and are, accordingly, inclined to stay away from situations where policy trumps text, except in the rarest of circumstances. Huhn points this out:
The resolution of cross-type conflict—and the solution to the commensurability problem—lies in balancing the values that each of the different types of argument serve.415 It is not possible to create a rigid hierarchy of types of arguments.416 There is a rough sense that the arguments should be ranked in the order they are listed: text, intent, precedent, tradition, and policy.417 Certainly many judicial opinions proceed in that order.418 However, the existence of a rigid hierarchy could not explain why, for example, when text conflicts with intent, the text controls in some cases, and the intent of the drafters controls in other cases.419 Each conflict must be evaluated in the context of the particular case.
Huhn (pp. 148-149).
Huhn’s theory of “the five types of legal arguments” is based on the content of the argument. Legal arguments can also be modeled by form, to wit, whether they are formally an argument based on deduction, analogy, or practical reasoning, which Huhn calls “formalism,” “analogy,” and “realism.” For Huhn, these categories are the stages of legal reasoning. Easy cases can be decided by formalistic rules. Formal rules are presumably easier to apply because they are based on objective criteria rather than judgment calls. For example, if the rule is that someone has to be thirty-five years old to run for president, then it is fairly easy to conclude that someone who is thirty years old cannot run for president.
The application of the rule gets harder when the facts depart from the paradigm of the rule, e.g, how old is a person who was conceived in vitro in 2020, put on ice for 20 years, born in 2040, and decides to run for president in 2060. [4] In such cases, the form of legal reasoning shifts to “reasoning by analogy.” Reasoning by analogy involves more judgment, since the question of what counts as a similarity or a valid analogy cannot be objectively defined.
Where analogies break down sufficiently, the judge is required to look at the principle underlying some legal rule that seems to be applicable and then extrapolate from that principle to the new fact pattern. Huhn calls this a “realistic policy analysis.”
Huhn outlines the following developmental pattern:
Accordingly, in progressively harder cases, we observe the following progression of legal arguments:
1. Formalist Arguments Applying Rules According to Their Terms →
2. Formalist Analogies to Rules in Cases with Similar Facts →
3. Realist Analogies to Rules in Cases Serving Similar Policies and Interests →
4. Realist Arguments Constructing New Rules Based Upon a Balancing of the Policies and Interests That Were Identified at Step 3.
Each of the stages of legal reasoning is necessary for a rational, coherent, and just system of law. Formalism promotes objectivity and predictability. Reasoning by analogy maintains consistency.549 And realism allows the law to adjust to new situations and ensures that the law will serve the underlying policies and interests that society values.
Huhn (p. 189).
This sets up an interesting point about the evolution of rules into standards and standards into rules. Huhn observes:
As rules evolve into standards—as the law moves from formalism to realism—the courts use realist analogies to identify the underlying values that justify all the various exceptions to the rule. In contrast, as standards evolve into rules—as the law moves from realism to formalism—the courts use formalist analogies to identify the factual similarities among the cases that apply the standard. As rules age, the courts increasingly question their validity as they are applied to diverse unforeseen fact patterns, and as standards age, the courts incrementally determine their meaning as applied to repetitive fact patterns. Rules evolve towards standards to serve justice, while standards evolve towards rules to enhance objectivity.576 To summarize, as rules evolve into standards:
See https://petersbradley.substack.com/p/...
April 19, 2021
If you ever need to know how to make solid arguments and counter arguments look, here’s your book!!
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March 12, 2014Is normal argument different from Legal Argument?
This entire review has been hidden because of spoilers.
May 13, 2012
The five different ways that you can do exactly what we tell you to do. Yeah, this book was awful.
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