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Announcements:

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.

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  1. 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.

  2. Writing the Argument Section of the Appellate Brief

  3. 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.

  4. Outlining the Argument 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.

  5. Legal Arguments as Syllogisms • Major premise = statement of law. • Minor premise = application of law to specific facts. • Conclusion = derives from premises.

  6. 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.

  7. 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.

  8. 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).

  9. 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?

  10. Constructing Syllogisms • Gulf Sturgeon Example (handout)

  11. What is best conclusion for your client? That the ESA prohibits the pier

  12. Convert this to a Syllogism • 1. • 2. • 3. Therefore, the ESA prohibits the pier. (Conclusion)

  13. Construct the Major Premise What Does the ESA Prohibit? • 1. The ESA prohibits “takings.” (Rule) • 2. • 3. Therefore, the ESA prohibits the pier. (Conclusion)

  14. Construct the Minor Premise • 1. The ESA prohibits “takings.” • 2. The pier would be a “taking.” • 3. Therefore, the ESA prohibits the pier.

  15. 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.

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

  17. 1. “Taking” means “harm” to an endangered species: 16 U.S.C. § 1532(19). 2. 3. Therefore, the pier would be a “taking.” Construct and Ground a Major Premise for the of New Syllogism.

  18. 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.” Construct the Minor Premise of Your New Syllogism

  19. 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. Ground the Minor Premise by Converting to a New Syllogism

  20. 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 Major Premise

  21. 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. Construct and Ground a Minor Premise

  22. Draft your own argument. • Create a syllogism for the sample brief. • The for your position as to the issues in the Appellate Brief.

  23. Use I.R.A.C., a form of Deductive Logic in Your Brief . The End.

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