Breaking Down the Curve: Acing Law School Exams by Anonymous

Author:Anonymous [Anonymous]
Language: eng
Format: epub
Published: 2016-01-18T05:00:00+00:00

Chapter Two:

How to Make Legal Arguments

There is an art to making legal arguments. That means that there are ways that are better and ways that are worse. The goal of all legal argument is ultimately to persuade other lawyers (who occasionally wear black robes and sit as judges) that entering a judgment for your side is the best choice that can be made. On law school exams, the task is slightly different. The goal on a law school exam is to show that you could persuasively make the arguments for your side and the other side. Your goal is to show that you understand the whole landscape of available, viable, arguments and that you can argue them all comfortably.

This Chapter is devoted to explaining how to make legal arguments well. It may seem like making a legal argument well is as simple as identifying the correct legal rule and “applying” it to the facts. And of course, that’s all it is. But the devil’s in the details. It’s that word—“apply”—where all the trouble lies. To make a compelling legal argument you have to master certain abstract rhetorical forms. Once you have practiced law long enough, they will come to you without conscious thought. But as a law student just starting out, they may not be obvious at all.

* * * * *

The Basics: How to Argue Anything to a Draw

There are three basic tools that you will (and probably already do) use routinely in argument. They are (1) manipulating an argument’s framing, (2) arguing past counterarguments, and (3) varying the level of generality of the arguments you make. Those three tools are the absolute essentials. They will allow you to argue pretty much any issue to a draw. Let’s go through them one by one.

Framing

“Framing” occurs whenever you place an argument within a narrative context or “frame” that casts it in its best or worst light. Frames provide the interpretive schemata through which the judge is meant to locate and identify your position against the larger constellation of existing legal materials, thereby rendering them meaningful. Strictly speaking, framing is not a species of logical argument but it is nonetheless an essential aspect of law because placing arguments within a narrative is central to human cognition. It also plays on a variety of heuristics and cognitive biases that humanity has inherited. The point is, the side that tells the better story frequently wins.

Framing is an essential aspect of argument at both the whole argument and word and sentence levels. At the word and sentence level, it is always best to emphasize the consistency of one’s arguments with the status quo, as human beings strongly favor the status quo. But if you are arguing for a novel or unconventional position, it is best to emphasize the costs of ruling against you. By the same token, if you are arguing for a position that is more familiar or more firmly dictated by conventional wisdom, it is more persuasive to emphasize the benefits of ruling for you.

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