Announcements: n The Standard of Review assignment –If you find a new standard of review case include it on your outline. n Your source list and an outline.

Announcements:

The Standard of Review assignment– If you find a new standard of review case include it on your

outline.

Your source list and an outline of the argument section are due in class this Monday, Feb. 7. Point-headings will not be graded.

Again, include no more than 25-30 cases plus statutes on the source list. Divide the sources according to the issues and include FULL case citations. Limit the outline to no more than 3 pages double-spaced and the source list to one page (single or double).

Review form for outline including roadmaps.

Writing the Argument Section of the Appellate Brief

Parts of a Syllogism

Major premise: Broad statement of general applicability.

Minor premise: Narrower statement of particular applicability.

Conclusion: Logical consequence of the major and minor premises.

Analytical Categories

Thinking about how to support or “ground” your premises will help you to identify the court’s analytical categories or factors important in making the legal determination.

This should help you come up with possible point and sub-point headings for your brief.

Outlining the Argument

Legal Arguments as Syllogisms

Major premise = statement of law.

Minor premise = application of law to specific facts.

Conclusion = derives from premises.

Thus, to support your arguments, you also need to “ground” your premises.

Grounding = providing enough support for the premises to convince your audience that the premises are true.

How do you ground the Major Premise?

By citing to legal authorities

Demonstrate that mandatory authority dictates a certain result; ground the major premise in law. Cite either a . . .

– Higher court.– Statute.– Constitution.

How do you ground the Minor Premise?

Because a minor premise of a legal syllogism applies a legal principle to the facts of the case, the minor premise always includes some sort of factual assertion.

Ground the minor premise first with another deductive argument and eventually on facts in evidence (THE RECORD ON APPEAL).

Relationship to analogies, conductive or other arguments-

The other forms of argument help with legal reasoning- with the grounding.

For example, analogies in the formof comparisons with precedentcases can support a premise,but do not provide the answer(the “so what”?)

Have you discovered any kind of conductive arguments (factor analysis) might you use to support your appellate brief argument regarding effective accommodations?

Constructing Syllogisms

Gulf Sturgeon Example (handout)

What is best conclusion for your client?

That the ESA prohibits the pier

Convert this to a Syllogism

1.

2.

3. Therefore, the ESA prohibits the pier. (Conclusion)

Construct the Major Premise What Does the ESA Prohibit?

1. The ESA prohibits “takings.” (Rule)

2.

3. Therefore, the ESA prohibits the pier. (Conclusion)

Construct the Minor Premise

1. The ESA prohibits “takings.”

2. The pier would be a “taking.”

3. Therefore, the ESA prohibits the pier.

Ground the Major Premise

1. The ESA prohibits “takings”: 16 U.S.C. § 1538(a)(1).

2. The pier would be a “taking.”

3. Therefore, the ESA prohibits the pier.

You Can Also Ground a Minor Premise by Converting to a New Syllogism

1. The ESA prohibits “takings”: 16 U.S.C. § 1538(a)(1).

2. The pier would be a “taking.”

3. Therefore, the ESA prohibits the pier.

1.

2.

3. Therefore, the pier would be a “taking.”

Construct and Ground a Major Premise for the of New Syllogism.

1. “Taking” means “harm” to an endangered species: 16 U.S.C. § 1532(19).

2.

3. Therefore, the pier would be a “taking.”

Construct the Minor Premise of Your New Syllogism

1. “Taking” means “harm” to an endangered species: 16 U.S.C. § 1532(19).

2. The pier would “harm” the Gulf Sturgeon, an endangered species.

3. Therefore, the pier would be a “taking.”

Ground the Minor Premise by Converting to a New

Syllogism 1. “Taking” means

“harm” to an endangered species: 16 U.S.C. § 1532(19).

2. The pier would “harm” the Gulf Sturgeon, an endangered species.

3. Therefore, the pier would be a “taking.”

1.

2.

3. The pier would “harm” the Gulf Sturgeon, an endangered species.

Construct and Ground a Major Premise

1. “Harm” means habitat modification effecting breeding. 50 C.F.R. § 17.3

2

3. The pier would “harm” the Sturgeon, an endangered species.

Construct and Ground a Minor Premise

1. “Harm” means habitat modification effecting breeding. 50 C.F.R. § 17.3

2.The pier will modify the habitat enough to effect breeding.

3. The pier will “harm” the Sturgeon, an endangered species.

Draft your own argument.

Create a syllogism for the sample brief.

The for your position as to the issues in the Appellate Brief.

Use I.R.A.C., a form of

Deductive Logic in Your Brief .

The End.